T. 7-28-93 Control No.

30629113538 AUG 09 1993 The Honorable Phil Gramm United States Senate 370 Russell Senate Office Building Washington, D.C. 20510-4302 Dear Senator Gramm: This is in response to your recent inquiry on behalf of your constituent, Jim W. Sealy, who has raised questions about the enforcement provisions of the Americans with Disabilities Act (ADA). Specifically, Mr. Sealy asserts that the ADA is not being implemented because "design professionals cannot deal with the [ ADA] interpretation process and the local governing authorities are prohibited from helping." Although Mr. Sealy expresses a general concern that the ADA is not being implemented adequately by the Federal government, his remarks, in fact, are focused on only one aspect of the ADA: the Federal mandate for accessible building design. In fact, the ADA is much more than that. Through the ADA, Congress intended to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b)(1). Title III of the ADA prohibits discrimination on the basis of disability by public accommodations; it requires new construction of (and alterations to) places of public accommodation and commercial facilities to comply with the ADA Standards for Accessible Design; and it requires certain examinations and courses to be offered in an accessible place and manner. In addition to complying with the ADA Standards for Accessible Design in new construction and alterations, public accommodations must comply with a range of title III requirements, including nondiscriminatory eligibility criteria; reasonable modifications in policies, practices, and procedures; provision of auxiliary aids; and removal of barriers in existing facilities. I have enclosed a status report highlighting the Department's recent efforts at enforcing title III of the ADA.

The ADA is intended to provide strong and consistent Federal Standards addressing discrimination against individuals with disabilities, 42 U.S.C. 12101(b)(2), and to ensure that the Federal Government plays a central role in enforcing these standards, 42 U.S.C. 12101(b)(3). cc: Records, Chrono, Wodatch, Blizard, McDowney, FOIA, Friedlander n:\udd\blizard\control\gramm.4 01-02499 -2Therefore, the ADA requires the Attorney General to issue regulations implementing title III, and makes the Department of Justice primarily responsible for enforcing title III through compliance reviews, complaint investigations, and litigation. (Title II may also be enforced through lawsuits initiated by private parties.) With respect to design and construction of buildings and facilities that are subject to title II, Mr. Sealy is correct that there is no ADA enforcement mechanism that is analogous to the traditional State building code enforcement process. No Federal agency is authorized by the ADA to act as a "building department" to review plans, issue building permits or occupancy certificates, or provide the type of interpretations of design standards usually provided by local code officials. The ADA, like other Federal civil rights statutes, requires each covered entity to use its best professional judgment to comply with the statute and the implementing regulations. State and local government officials are neither required nor authorized to enforce title III of the ADA. However, they are not, as Mr. Sealy asserts, "prohibited from helping" in the process of ADA implementation. Nothing in the ADA or the title III regulation prevents State or local code officials from offering advice or assistance to individuals who are seeking to implement the ADA's requirements. The ADA Standards recognize that there are times when judgment must be exercised in the application of the Standards. Where permitted by their local laws, code officials who are familiar with the ADA Standards may be able to assist covered entities in applying the title III requirements to specific projects. However, State or local code officials may not issue binding interpretations of the ADA Standards or take any action that purports to relieve a public accommodation or commercial facility of its obligation to comply fully with the ADA.

Title III of the ADA formally recognizes the important role of building code officials in the design of accessible buildings by authorizing the Attorney General to certify that State laws, local building codes, or similar ordinances meet or exceed the title III standards for new construction and alterations. In ADA enforcement litigation, compliance with a certified code may Be offered as evidence of compliance with title III. Although certification facilitates consistency between The ADA Standards and the building process at the State and local level, it does not change the authority of State or local code officials with respect to the ADA. Code officials implementing a certified code are authorized to enforce only the building regulations in force in their jurisdiction; they are not authorized to enforce title III.

01-02500 -3Mr. Sealy states that private sector entities involved in the design and construction industry have prepared a model code document, which has been submitted to this Department for review, but has not yet been certified. He asserts that, through this submission, the code community has "complied with the provisions of the law that apply to equivalency certification," but that the Department "seems to be stalling" this effort to comply. Mr. Sealy apparently misunderstands the certification process. Model codes or standards prepared by private sector organizations are not eligible for certification. The ADA permits the Department to certify only codes that have been adopted and submitted for certification by State or local governments; it does not permit the certification of model codes or standards. However, because the Department recognizes that many State and local codes rely on models, the title III regulation provides that the Department may review submitted model codes or standards and provide guidance as to whether the submitted document is consistent with the title II requirements. The Department is not required to review models, and review does not constitute certification of a model. We believe that the document that Mr. Sealy referred to is the American National Standards institute's (ANSI) consensus accessibility standard, which was published in January 1993 by the Council of American Building

Officials (CABO) as the CABO/ANSI A117.1-1992: American National Standard for Accessible and Usable Buildings and Facilities. At the request of CABO, this Division's Public Access Section is reviewing the CABO/ANSI A117.11992 standard to determine if it is equivalent to the ADA Standards. The Section intends to complete its review as soon as possible. However, the Section's current workload is heavy and its staff resources are limited. These resource constraints necessarily limit the extent to which the Section is able to undertake discretionary activities such as the review of model codes. I hope that this information is helpful to you in responding to Mr. Sealy. Sincerely,

James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosure 01-02501 JWS 9 March, 1993 Senator Phil Gramm 2323 Bryan Street Suite 1500 Dallas, Texas 75201 Dear Senator Gramm: Something must be done about the Americans With Disabilities Act: It is not working. I am not complaining about the act itself. The problem is a lack of activity in the progression of implementation of the act. When the act was put into place, enforcement was assumed by the Department of Justice

and interpretation was left to the design professional. When ADA was in the public comment phase, many architects questioned the wisdom of removing the local Building Official from the process of implementing the act. Our worst fears have come true. Most design professionals cannot deal with the interpretation process and the local governing authorities are prohibited from helping. Something is drastically wrong with that premise, and it must be changed. When the design, construction and code related industries realized what the law included for enforcement and interpretation, they set about to write a corresponding document that could be submitted to the Department of Justice for compliance certification. That document was completed and submitted to DOJ in June of 1992. In subsequent meetings and conversations with representatives of DOJ, we were told that their review of our submission would be completed by 31 October, 1992. We are still waiting for the results of their review. Why? We can't find out why and we need help. As most of us feared, the bulk of the ADA activity is taking place in The legal arena and not in implementation. Physically disabled citizens are not realizing the benefits that the act was designed to provide, because of this delay and inactivity. On the surface, it would appear that ADA is working, but it is not. Too many members of our business world are waiting for the results of litigation before they make their decisions about compliance. That is wrong. Had enforcement of the law been relegated to the local code jurisdictions, we would be very close to implementation, at this point. I know Congress had reasons for drafting the bill in the way that it was enacted, but it has not helped those for whom it was intended. We in the design profession recognized that flaw and set about to assist in the general scheme of complying with the intent of the law. We have completed our part and have compiled with the provisions of the law that pertain to equivalency certification. The U.S. Department of Justice seems to be stalling our efforts to comply. Why? JIM W. SEALY, AIA ARCHITECT / CONSULTANT 1340 Prudential Drive Dallas, Texas 75235 - 214/637-3047 01-02502 Senator Phil Gramm 9 March, 1993 page 2

I am copying Senators Kennedy and Dole, the cosponsors of the original bill. Both were very supportive and I am sure they will want to know their hard work has met with very little success. Besides being a design professional, I work with the formulation of national building codes and standards and, as a Board Director of the Dallas mayor's Committee for the Employment of People with Disabilities, I am an advocate for the rights of the disabled. Because of those varied activities, I can view ADA from several perspectives and I can tell you with certainty, that it is not working. Will you gentlemen please help? Sincerely,

Jim. W. Sealy, FAIA JWS/eb

Cc: Senator Robert Dole Senator Ted Kennedy